Enter the ATF: Why...bolster the ATF's image
Wed Mar 8, 2006 14:02
 

Enter the ATF
http://www.firearmsandliberty.com/waco.horn.html#T6

In Feb. 1982, the Senate Judiciary Committee said in a report that the ATF had "disregarded rights guaranteed by the Constitution and laws of the United States." Illegal ATF actions included entrapment and secret lawmaking via unpublished administrative interpretations of gun laws. The report noted that "expert evidence was submitted establishing that approximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations." In the wake of the report, plans to abolish the agency were shelved after neither the U.S. Customs Bureau nor the Secret Service would accept the transfer of the discredited ATF agents into their organizations [3] .

The ATF acted true to form in its investigation of the Davidians -- the purpose of the raid appears to have been to bolster the ATF's image, rather than any protection of the public safety. From Aguilera's affidavit it appears that the ATF collected no reliable new information for its investigation after June 23, 1992. But in mid-November "60 Minutes" began contacting ATF personnel about allegations of sexual harrassment in the agency [61] . In early December the investigation picked up again, after a lapse of 5-1/2 months [62] .

On January 12, 1993 the segment aired. It presented allegations by female ATF agents that they had been sexually harrassed on the job and that the agency intimidated victims and witnesses who had pressed sexual harrassment claims. Among the charges was one of near-rape: agent Michelle Roberts charged that another agent had pinned her against the hood of a car while two others tore at her clothes. ATF agent Bob Hoffman told "60 Minutes" that he had verified the complaints of one female agent, and said, "In my career with ATF, the people that I put in jail have more honor than the top administration in this organization." Shortly afterwards, there was also a front-page article in the The Washington Post about racial discrimination in the ATF.

The "60 Minutes" story devastated both the public image and morale of the ATF. ATF Director Stephen Higgins must have been in a panic. A Republican appointee, he stood a good chance of losing his job with a Democratic administration coming in. Even if he didn't, he was going to have a rough time at the congressional budget hearings coming up on March 10. Said one high-level former ATF senior official who requested anonymity, "The show had great repercussions within the bureau... (S)ome (within the ATF) concluded that he (Higgins) was... looking for a high-profile case to counteract the negative image and enable him to go to the budget appropriations hearings with a strong hand." [52]

This analysis was supported by a followup "60 Minutes" report on May 23. Based on statements from ATF agents, Mike Wallace concluded the report by saying, "Waco was a publicity stunt, which was intended to improve the ATF's tarnished image." Consistent with this interpretation, the ATF notified the media before the raid [50] , [56] , [35] , and there were a large number of television and newspaper reporters at the site on the morning of the raid [50] .

Appendix G of the Treasury Department report on Waco suggests another, more disturbing motive for the raid. The appendix, entitled "A Brief History of Federal Firearms Enforcement," contains the following statement:

In a larger sense, however, the raid fit within an historic, well-established and well-defended government interest in prohibiting and breaking up all organized groups that sought to arm or fortify themselves... From its earliest formation, the federal government has actively suppressed any effort by disgruntled or rebellious citizens to coalesce into an armed group, however small the group, petty its complaint, or grandiose its ambition.

In other words: regardless of whether you break any law, if some federal official doesn't like your politics and thinks you have too many weapons, you will be exterminated.

Serving the Warrant

On February 25 ATF Special Agent Davy Aguilera filed for and received a warrant to search the premises of Mt. Carmel, claiming evidence of illegal conversion of (legal) semiautomic weapons to automatic. Contrary to early ATF claims, there was no arrest warrant for Koresh. The affidavit supporting the warrant was seriously flawed, containing many inaccuracies and patently false statements (such as the "LA riots" quote). According to several legal experts, including a former ATF senior enforcement official with more than 20 years' federal firearms experience, it is questionable that the affidavit demostrated probable cause for a search [51] , [58] .

Steve Holbrook, an attorney in Washington, D.C. area, whose law practice specializes in gun-related offenses, was unequivocal: "Probable cause did not exist. There was evidence cited of a large quantity of legal firearms and parts, including interchangeable parts... Nowhere in the affidavit is it said all necessary parts and materials to convert semiautomatic weapons into machine guns were obtained (by Koresh)." [51]

The claimed violation itself is a tricky area of the law. "This is a very, very convoluted, technical, angels-dancing-on- the-head-of-a-pin kind of argument," says Robert Sanders, former enforcement chief of the ATF. "And there are no published rulings telling you what is and isn't (a violation)." [62]

Importantly, this was not a no-knock search warrant, in which agents may knock down doors and burst in heavily armed without prior warning to occupants; such warrants must be specifically applied for, which the ATF failed to do [53] . Nor was a no-knock approach necessary. As we have seen, Koresh and his followers had peacefully cooperated with law enforcement officers on at least three occasions in the past (once after the Roden gunfight, twice during the child-abuse investigation). And in July 1992 Koresh had actually invited ATF investigators to come out to Mt. Carmel and inspect the Davidians' guns [4] , [6] , [55] , but he was angrily told "we don't want to do it that way." [6]

Furthermore, the ATF knew that nearly all the guns at Mt. Carmel were locked up and only Koresh had a key [63] . To avoid any possibility of armed resistance from the Davidians, they could have simply detained Koresh during one of his frequent excursions outside of Mt. Carmel [18] , [29] and had him unlock the store of guns in their presence.

Absent a no-knock warrant, U.S. law (Title 18, U.S.C. 3109) states that an officer must give notice of his legal authority and purpose before attempting to enter the premises to be searched. Only if admittance is refused after giving such notice is it legal for an officer to use force to gain entry. Said one former senior ATF official, "Irrespective of the situation inside, the notice of authority and purpose must be given... Unless the occupants of a dwelling are made aware that the persons attempting to enter have legal authority and a legal warrant to enter, the occupants have every right to defend themselves..." [54]

Dick DeGuerin, a well-known Houston lawyer, put it more bluntly: "...if a warrant is being unlawfully executed by the use of excessive force, you or I or anybody else has a right to resist that unlawful force. If someone's trying to kill you, even under the excuse that they have a warrant, you have a right to defend yourself with deadly force, and to kill that person." [4]

It appears that the ATF never intended to serve the warrant in a lawful manner. ATF agents told the Houston Post that before the raid they had practiced to where it took 7 seconds to get out of their tarp-covered cattle trailers and 12 seconds to get to the front door. It is absurd to imagine that after such a mad dash to the door, the ATF agents intended to stop, knock, calmly state their legal authority and purpose, demand entry, and wait for a response, all before taking further action.

So how did the ATF serve its warrant? On Sunday morning, February 28, 1993, 100 federal agents arrived at Mt. Carmel in cattle cars and helicopters. About 30 agents dressed in black commando uniforms and armed with machine guns stormed the complex [9] , [19] . According to an Associated Press report, "Witnesses said the law officers stormed the compound's main home, throwing concussion grenades and screaming `Come out,' while three National Guard helicopters approached." [2]

Who Shot First?

The question of who shot first is in a sense irrelevant, as the ATF agents clearly attacked first when they threw grenades at the Davidians' home. Once the ATF used unlawful force, the Davidians had the legal right to resist them with deadly force.

Nevertheless, the Davidians insist that ATF agents shot first. "They fired on us first," Koresh told CNN. "...I fell back against the door and the bullets started coming through the door... I was already hollering, `Go away, there's women and children here, let's talk.'" [19] Davidians in another part of the city-block-sized complex said the battle began when the helicopters circling overhead fired on them without warning [13] .

David Troy, ATF intelligence chief, said a videotape was taken of the entire mission [36] . But although parts of this tape were released to the media, one important part was not: the start of the raid. It seems unlikely the ATF would have withheld this footage if it supported the ATF's contention that the Davidians fired first.

There is evidence to support Koresh's version of events. Federal law enforcement sources told Soldier of Fortune magazine the following:

* One ATF agent had an accidental discharge getting out of one of two goose-necked cattle trailers used to transport and conceal agents -- he wounded himself in the leg and cried out, "I'm hit!" [14] Unless you have a very disciplined group, you can expect all hell to break loose once any shot is fired; and according to Charles Beckwith, a retired Army colonel and founder of the military's antiterrorist Delta Force, the ATF's raid was "very amateur." [28]

* Steve Willis, one of the ATF agents killed in the raid, was assigned to "take out" Koresh if necessary. When Koresh came out, Willis began firing a suppressed MP5 SD submachine gun at him from the passenger side of the leading pickup. Reporters kept some distance away from the action would not have heard a silenced MP5 SD, while the cattle trailer would likely have blocked their view [14] , [15] .

The Assault

Concurrent with the attack on the front of the Mt. Carmel complex were two other attacks on the Davidians.

According to Davidians who surrendered during the siege, the helicopters circling overhead fired down through the roof into the complex, killing one man and two women as they lay in their beds [64] [72] . The children, whose dormitory was on the second floor, crawled under their beds as bullets ripped through the walls above them [15] , [25] . Houston attorney Dick DeGuerin viewed the inside of the complex after the raid, when federal officials allowed him to meet with the Davidians and try to persuade them to surrender. He reported seeing bullet holes on the second storey, clearly coming from the outside in, at such an angle that they could only have come from above the complex [64] .

Moments after the assault began, an 8-man ATF team began ascending the roof near an upstairs window which they believed to be in the vicinity of Koresh's bedroom and weapons locker [12] , [15] . Video footage of the raid shows the agents breaking the window, tossing grenades inside, and indiscriminately spraying gunfire within.

A well-placed federal official told the Houston Post that at least 10 Davidians were killed in the battle. One of those confirmed dead was Koresh's two-year-old daughter [24] . Another was Winston Blake, a 28-year-old printer, painter, and welder; he was shot to death as he stood unarmed by the complex's water tank [40] .

Four ATF agents were killed in the gunfight, and numerous wounded. Dan Hartnett, associate director of the ATF, claimed that the ATF suffered heavy casualties because of strict rules of engagement that prohibit shooting without a definite target. "We had to wait for a target because there are so many women and children inside," he said. But broadcast video of the raid shows agents exercising poor fire control, firing over vehicles with little or no view of what they were shooting at, at a rate of two rounds per second [11] , [27] .

The ATF's concern for the women and children inside was further demonstrated by their use of the "9 mm. Cyclone" round in their submachine guns. This highly-penetrating round is available only to law-enforcement special operations teams and the military, and is specifically designed to cut through body armor [17] .

Two separate federal sources told Soldier of Fortune magazine that such a round was removed from a wounded ATF agent, and that many, if not most, of the ATF casualties resulted from "friendly fire." [17] Newsweek also reported that a federal source involved in the Waco situation said that "there is evidence that supports the theory of friendly fire," and that during the assault "there was a huge amount of cross-fire." [8] Furthermore, in the released video footage of the raid, there is little or no evidence of return fire from the Davidians.

The attack terrified the Davidians, and they were eager for a cease-fire. Wayne Martin telephoned his friend, Waco city councilman Lawrence Johnson. According to Johnson, Martin said "they were in a firefight, they were taking casualties, and a lot of people were hurt. He asked me to contact the media." [42] The New York Times reported that after capturing four federal agents, the Davidians disarmed and released them during the firefight. And both Martin and Koresh phoned 911 about the attack.

ABC broadcast portions of the 911 tapes on its Nightline program. Martin phoned first and spoke with Lieutenant Lynch of the Waco Sheriff's Department. He told Lynch, "There's about 75 men around our building and they're shooting it up in Mt. Carmel... Tell them there are women and children in here and to call it off!" Calling it off took some time. During a later return phone call, even as Lynch and Martin were trying to arrange the cease-fire, Martin's location was receiving heavy gunfire and Martin himself was hit. When requested not to return fire, an unidentified Davidian replied in a disgusted tone, "We haven't been." [7]

In the end, it was not humanitarian concerns or negotiations that brought an end to the hour-long assault; it was lack of ammunition. The 100 agents who participated in the assault had a total of only 40 rounds left among them when they finally backed off [16] .

References

1. Press conference given by President Clinton in Washington, D C., on April 20, 1993, 1:36 p.m. EDT.

2. Associated Press, March 1, 1993; appeared in Knoxville News- Sentinal

3. Washington Times, June 1, 1993, p. E3.

4. Houston Press, July 22, 1993.

5. San Francisco Chronicle, October 9, 1993.

6. Houston Chronicle

7. ABC's "Nightline", June 9, 1993.

8. "Was It Friendly Fire?", Newsweek, April 5, 1993, p. 50.

9. Reuters News Service, February 28, 1993.

10. Associated Press, February 28, 1993.

11. "Gun Gestapo's Day of Infamy," Soldier of Fortune, June 1993, p 48..

12. Ibid., p. 49.

13. Ibid., p. 50.

14. Ibid., p. 51.

15. Ibid., p. 52.

16. Ibid., p. 53.

17. Ibid., p. 62.

18. Ibid., p. 63.

19. Houston Post, March 1, 1993, p. A1.

20. Ibid., p. A8.

21. Ibid., p. A4.

22. Houston Post, March 2, 1993, p. A8.

23. Ibid., p. A13.

24. Houston Post, March 3, 1993, p. A1.

25. Ibid., p. A12.

26. Ibid., p. A18.

27. Houston Post, March 4, 1993, p. A1.

28. Ibid., p. A20.

29. Houston Post, March 5, 1993, p. A1 and A16.

30. Ibid., p. A22.

31. Houston Post, March 8, 1993, p. A1.

32. Ibid., p. A10.

33. Houston Post, March 9, 1993, p. A8.

34. Ibid., p. A13.

35. Houston Post, March 12, 1993, p. A20.

36. Houston Post, Marc

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